TKe AlasKan Boundary Case 



M PMPKR read fry 



J. M. DICKINSON 

of Chioat^o, Illinois 



before 



TKe American Bar Association 



at the 



T-wenty-seventH Annxial Meeting 



St. Louis, Missouri 
Septwmber 26. 1904' 



\_Reprinted from the Transactiont of the Astociation^ 



White Hov^ «. 









VP 



THE ALASKAN BOUNDARY CASE. 

BY 

J. M. DICKINSON, 

OF CHICAGO, ILLINOIS. 

The invitation to me to write a paper for this occasion was 
coupled with the suggestion that it be upon the Alaskan 
Boundary Case. So many stirring events have occurred since 
that decision that not only the general public, but doubtless 
the profession, have lost much of the interest that it aroused 
less than a year ago. If I am dealing with a subject that may 
seem stale and unprofitable, I beg that you will visit the 
responsibility upon the governing authorities of the Associa- 
tion and not upon a loyal member who felt it his duty to con- 
tribute so far as he could toward carrying out the designated 
programme. Within the limits of a paper like this it will be 
impossible to give more than a general view of the salient 
points, and my endeavor shall be to avail myself of this 
opportunity to put into accessible and permanent form such 
features of the case as the profession would probably be inter- 
ested in. The record and arguments fill seven volumes and 
three portfolios of maps, and it would be a Avork of very great 
labor for anyone to acquire for himself anything like a com- 
prehensive understanding of what was involved. 

Historical Introduction. 

The northwest coast of America was the last seaboard of 
the continent to be occupied by Americans and Europeans. 
In 1728 Behring discovered the strait between America 
and Asia, and reached the continent of North America in 
latitude 65° north. In 1778 the Russians were established 
throughout the Aleutian Islands. On July 9, 1799, the Czar 
issued an ukase which granted to the Russian-American 
Company a trade monopoly and exclusive occupation of 



the northwest coast of America down to the 55th parallel. 
This company was the representative in that region of the 
Russian government and exercised full governmental powers. 
From establishments on the islands it extended its trade 
with the Indians along the continental shore. American ves- 
sels, in constantly increasing numbers from 1790, extended 
their trading into that region and greatly impaired the value 
of the monopoly that had been granted by the Russian gov- 
ernment. The Americans disposed of their furs at Canton 
and thus secured a great advantage over the Russians, who 
were not permitted to enter that port. It was charged that 
the Americans sold liquor and firearms to the natives, which 
made them both insubordinate and dangerous. Representa- 
tions were made by Russia to the government of the United 
States in regard to this "illicit traffic" in 1808 and 1810. 
After the war of 1812 American vessels increased their 
activity. In 1821, and mainly on account of American 
traders, another ukase was issued, addressed " unto all men," 
granting to Russian subjects all commercial and fishing rights 
along " the whole of the northwest coast of America from 
Behring Strait to the 51° north latitude." All foreign ves- 
sels were prohibited from approaching within one hundred 
miles of that coast, and were interdicted to carry on any 
traffic with the natives "of the islands and of the north- 
west coast of America in the whole extent here above men- 
tioned." 

In the same year a monopoly of commerce and trade along 
this whole coast was given to the Russian-American Company, 
extending the former grant from the 55th down to the 51st 
parallel. The United States and Great Britain were formally 
notified by Russia of this action. At that time Great Britain 
had substantially no trade on the northwest coast of America, but 
the inhibition as to navigating within one hundred miles of this 
coast, and of the Russian coasts on the west of the Pacific, thus 
making, in effect a mm-e clausum of the northern part of the 
Pacific Ocean, at once alarmed Great Britain. Two months 



and a half after the official notification Great Britain protested 
against the assertion of sovereignty by Russia over such a 
wide extent of ocean and reserved the question as to Russia's 
claim of ownership of the northwest coast. 

On February 25, 1822, the United States government pro- 
tested against the assertion, both as to maritime and territorial 
rights. Each government disclosed a purpose to assert in 
behalf of its citizens the right of trade on the northwest 
coast, and denied the sovereignty of Russia over those regions. 
Negotiations were begun between Russia and the United 
States on the one hand and Russia and Great Britain on the 
other hand in 1822, looking to an adjustment of these ques- 
tions. In these negotiations both Great Britain and the 
United States asserted title to portions of the northwest coast 
which had been brought into controversy. Inasmuch as the 
same questions were involved, at the suggestion of the Russian 
government, the negotiations, both in behalf of Great Britain 
and of the United States, were carried on at St. Petersburg. 
It was even suggested that the interests and claims of the 
three powers be adjusted by a joint convention. 

In a letter from Mr. Adams to Mr. Rush, July 22, 1823, 
an assertion in line with the declaration of President Monroe 
in his message to Congress in December of the same year was 
made as follows : 

"It is not imaginable that, in the present condition of the 
world, any European nation should entertain the project of 
settling a colony on the northwest coast of America." 

When this was brought to the attention of Great Britain, 
that government announced its intention of proceeding sepa- 
rately in its negotiations with Russia. 

The negotiations between Russia and the United States 
terminated in a treaty signed April 5, 1824, by which Russia 
Avithdrew her pretensions with respect to navigating the Great 
Ocean, and it was agreed that Russia would make no settle- 
ments south of 54° 40' of north latitude on the northwest 
coast of America, and that the United States would make 
none north of that degree. 



The negotiations between Great Britain and Russia eventu- 
ated in a treaty signed February 16, 1825, in which Russia 
withdrew her pretensions as to exclusive right of navigation, 
and a territorial line between Russia and Great Britain was 
established, in respect of the islands and northwest coast of 
America. 

After the treaty of 1825 went into effect Russia asserted 
without question sovereignty over all the northwest coast of 
America north of the parallel 54° 40', exercised jurisdiction 
over the natives thereof, made surveys and utilized the coun- 
try so far as it then appeared to be capable of being occupied. 
In 1826, and from time to time down to the American pur- 
chase, it published ofBcial maps laying down the territorial 
boundary between Russia and Great Britain substantially as 
claimed by the United States in their controversy with Great 
Britain. The governmental headquarters were at New 
Archangel, now known as Sitka, and frequent expeditions 
were sent to the heads of Lynn Canal and Taku Inlet. 

In 1839 the Russian American Company and the Hudson's 
Bay Company, with full knowledge and consent upon the part 
of their respective governments, entered into a contract by 
which there was leased to the Hudson's Bay Company sub- 
stantially all of that part of the northwest coast of America 
drawn in controversy between the United States and Great 
Britain, and certainly all that part of it bordering the heads 
of the interior waters, such as Lynn Canal. The Hudson's 
Bay Company, with the knowledge and consent of Great 
Britain, remained in possession of this territory as the tenant 
of Russia, down to the time that it was ceded by Russia to the 
United States, and surrendered it when the United States 
took formal possession. 

Shortly after the treaty of 1825 and down to the time of 
the American purchase, there were issued, from time to time, 
various official maps by Great Britain, laying down the bound- 
ary line between Great Britain and Russia, in such a way as 
to give Russia the heads of all the inlets and interior waters. 



and substantially where the United States contended it should 
be. Great Britain never, prior to the American purchase, set 
up any pretension to ownership of any part of those coasts, 
and never exercised any civil or military jurisdiction in any 
way over any part of it. 

By a convention entered into between the United States 
and Russia, concluded March 30, lb67, the United States 
purchased from Russia her title to all the territory which had 
been confirmed in Russia by her treaty with Great Britain in 
1825, paying the sum of $7,200,000 therefor. The formal 
transfer of the territory was eflected at Sitka on October 18, 
1867, and on the same day the United States revenue vessel, 
the Lincoln, took formal possession at the head of Lynn Canal. 

When Mr. Sumner made his speech urging the ratification 
of the treaty, he used a map which had been given to him by 
the representative of the Russian government, and which 
showed the possessions claimed by Russia, indicated by a 
boundary line between Russia and Great Britain laid down 
substantially as subsequently insisted upon by the United 
States. This map is now the property of Harvard Univer- 
sity, having been presented to it by Mr. Sumner. 

Shortly thereafter the United States published a large num- 
ber of official maps laying down the line in the same way, and 
these, without doubt, came to the attention of Great Britain. 
Great Britain continued to publish official maps showing the 
line in substantially the same way down to the year 1898. 
The cartographers of the world generally, in their publica- 
tions, beginning shortly after 1830 and continuing down to 
the time this controversy arose, indicated the boundary line in 
the same way. From the day they took possession the United 
States, without question, constantly asserted and exercised juris- 
diction over all of that coast and the adjacent waters. Their 
revenue cutters and navy all the time dominated those waters. 
No other country ever questioned their sovereignty. The 
various Indian tribes inhabiting the coast were brought under 
their jurisdiction, and understood that they were under the 



sovereignty of America. Frequent surveys were made at the 
heads of all the waters in question. In 1880 all foreign ves- 
sels were forbidden to unload at the head of Lynn Canal, and 
in 1890 a collector of customs was established there. In 1884 
the civil government of Alaska was extended to that territory, 
and the United States Courts and their officers exercised 
unquestioned jurisdiction over it. The records of the Depart- 
ment of Justice show particular instances, from 1887 to 1894 
inclusive, of persons proceeded against criminally for acts done 
at the head of Lynn Canal. In 1880 and in 1890 a census 
was taken of the inhabitants of that territory, and a post 
office was established near the head of Lynn Canal in 1882. 
Various other acts of government too numerous to mention, 
and all of them unchallenged, demonstrated that the United 
States, although they had not penetrated into the mountainous 
interior, were in full exercise of sovereignty over all the 
canals, inlets and coasts. 

On account of the development of gold deposits in the 
Cassiar region, the trade of the Stikine River had grown to 
such proportions as to impress the governments of the United 
States and Great Britain with the importance of establishing 
the boundary line. 

In 1872, which was forty seven years after the treaty 
between Great Britain and Russia and five years after the 
United States had taken possession at the head of Lynn Canal, 
a correspondence began, at the instance of the Legislative 
Assembly of British Columbia, suggesting that the boundary 
line was not laid down in the treaty of 1825 with sufficient 
definiteness " to render it readily traceable on the ground " 
and that steps be taken to establish it. These negotiations, 
which, on the part of the United States, were conducted by 
Secretary Fish, continued until 1876, but'^^no suggestion was 
ever made in any of the correspondence that Great Britain 
claimed any part of the canals or inlets north of Portland 
Canal, or any part of the coasts bordering them. On the con- 
trary, it was treated as an accepted fact that the line should 



be drawn in the interior, as suggested by Secretary Fish, 
across the Iskoot, Stikine, Taku, Islecat and Chilkat Rivers 
in such a way as to make it impossible that, at that time, any- 
one contemplated that it would traverse any of the arms or 
inlets of the ocean so as to give any part of the coast, or any 
ports, to Great Britain. 

No survey was made then on account of the cost, which was 
considered as prohibitory. There was a survey on the Stikine 
River and the adoption of a provisional boundary line in 1878. 
/^The correspondence conclusively shows that down to that 
/time both governments treated the question upon the assump- 
tion that the Stikine and the other rivers were crossed by the 
\ boundary line, and that it in any event must be drawn around 
\he heads of all of the bays and inlets. 

On account of the difficulties in surveying the boundary 
arising from the mountainous and inaccessible character of the 
country, an informal unofficial conference took place in Wash- 
ington between William H. Dall, of the Smithsonian Institu- 
tion, and G. M. Dawson, of the Geological Survey of Canada. 
In their correspondence in 1888 Mr. Dawson advanced a 
theory as to running the line which involved the essence of 
that insisted on by Great Britain before the tribunal, but he 
did not put it forward in behalf of the government, and it was 
not at that time in any way adopted or urged by the British 
government. It was afterwards asserted by Lord Lansdowne, 
in a letter of August IS, 1902, that it was accepted as 
embodying the Canadian view, and in the British case that it 
was put forward by Mr. Dawson as representing Her Majesty's 
government as " the contention that the territories surround- 
ing the head of Lynn Canal were British," but the record did 
not bear out either of these claims. 

On July 22, 1892, a treaty was made between the United 
States and Great Britain providing for a survey " with a view 
to the ascertainment of the facts and data necessary to the 
permanent delimitation of said boundary line in accordance 
with the spirit and intent of the existing treaties in regard to 



it between Great Britain and Russia and between the United 
States and Russia." The high contracting parties agreed 
as soon as practicable after the report or reports of the com- 
missioners " to consider and establish the boundary line in 
question." Joint surveys were made, and a joint report was 
submitted December 31, 1895, but it contained no recom- 
mendation for a settlement. 

In 1896 gold was discovered in the Yukon territory and 
there was an immense influx to the Klondike by water to the 
head of Lynn Canal and thence over the passes into British 
territory. The head of Lynn Canal, formerly but little 
thought of, on account of its harbors being the natural gate- 
ways to the gold regions, at once became of immense import- 
ance. It was not until after the Klondike rush began that 
any question was raised officially as to the sovereignty of the 
United States over those waters and coasts. As late as Feb- 
ruary 11, 1898, during a debate in the Canadian House of 
Commons, the Minister of the Interior, the Hon. Clifford 
Sifton, the question as to the ownership of the land about the 
head of Lynn Canal being under discussion, said that Skagway 
and Dyea had been in the undisputed possession of the United 
States for some time past, and that no protests had been made 
against such occupancy. On February 16, 1898, Sir Wilfred 
Laurier, in the Canadian House of Commons, said that Dyea 
and Skagway have "been in the possession of the United 
States ever since they acquired this country from the Russian 
government in 1867, and, so far as my information goes, I am 
not aware that any protest has ever been raised by any gov- 
ernment against the occupation of Dyea and Skagway by the 
United States." On March 7, 1898, he said : 

"... But if we had adopted the route by the Lynn 
Canal, that is to say, had chosen to build a railway from Dyea 
by the Chilkat Pass up to the waters of the Yukon, we would 
have to place the ocean terminus of the railway upon what is 
now American territory." . . . " The fact remains that 
from time immemorial Dyea was in possession of the Russians, 
and in 1867 it passed into the hands of the Americans, and it 



9 

has been held in their hands ever since." ... So far as 
I am aware no protest has ever been entered against the occu- 
pation of Dyea by the American authorities." 

On February 23, 1898, Sir Julian Pauncefote, in a com- 
munication to the Secretary of State, made by the direction of 
the Marquis of Salisbury for the purpose of having a settle- 
ment of the boundary line, said : 

" The great traffic which is now attracted to the valley of 
the Yukon in the northwest territory by the recent discovery 
of gold in that region finds its way there from the coast, prin- 
cipally through certain passes at the head of the Lynn Canal, 
and it has become more important than ever for jurisdictional 
purposes that the boundary, especially in that particular local- 
ity, should be ascertained and defined. 

Her Majesty's government, therefore, propose that the 
determination of the coast line of the boundary south of 
Mt. St. Elias should at once be referred to three commis- 
sioners (who should be jurists of high standing), one to be 
appointed by each government, and a third by an independent 
power. It is suggested further that the commission should 
proceed at once to fix the frontier at the head of the inlets 
through which the traffic for the Yukon Valley enters, con- 
tinuing subsequently with the remaining strip or line of coast." 

Thus he, at that date, virtually conceded that Great Britain 
did not claim that the line ran across the inlets and that it 
must be fixed " at the head of the inlets." 

As there was a failure to fix the boundary under the 
treaty of 1892 and the surveys made in pursuance of it, 
another treaty was entered into by which a Joint High 
Commission was constituted, which met in 1898 and 1899. 
Before this commission, and for the first time. Great Britain 
put forward an interpretation of the treaty of 1825, which would 
make the boundary line run essentially different from any- 
thing ever shown upon any Russian, British or United States 
map, and so as to put into British territory all of the heads 
of the important inlets and every desirable and safe harbor 
and anchorage from the mouth of Portland Channel to 
Yakutat Bay, and much of the mining territory of the 



J 



10 

Porcupine, Berners Bay, Juneau, Snettisham, Sumdum, 
Windham Bay and Unuk River districts, whose mineral 
wealth for twenty years had been without any question 
exploited by citizens of the United States. It also included the 
towns of Pyramid Harbor, Haines, Dyea and Skagway, all 
of them situated where the United States had exercised undis- 
puted sovereignty since 1867. This claim was so extravagant 
that the United States members of the Joint High Commission 
declined to proceed further. 

The question became more and more acute. It was mani- 
fest that the friendly relations between the two governments 
might sustain a lesion if it should not be settled, and that 
another treaty would be necessary. 

Signing and Ratification of Convention of 1903. 

On January 24, 1903, at Washington, a treaty was signed 
between the United States and Great Britain, and the ratifi- 
cations of the two governments were exchanged in the city 
of Washington on the third day of March, 1903. 

The Tribunal. 

It was provided in Article I that a tribunal should be im- 
mediately appointed to consider and decide certain questions, 
that it should consist of six impartial jurists of repute, who 
should consider judicially the questions submitted, each hav- 
ing first subscribed an oath to consider impartially the argu- 
ments and evidence and decide thereupon according to his 
true judgment. Three members were to be appointed by the 
President of the United States and three by His Britannic 
Majesty, and all questions were to be decided by a majority of 
the six. 

There were appointed on behalf of the United States, 
Hon. Elihu Root, Secretary of War, Hon. Henry Cabot 
Lodge, of Massachusetts, and Hon. George Turner, of the 
State of Washington, and on behalf of Great Britain, the 
Lord Chief Justice of England, His Honor Sir Louis Aimable 



11 

Jett^, K. C. M. G., Lieutenant Governor of the Province of 
Quebec, and the Hon. John Douglass Armour, Judge of the 
Supreme Court of Canada. 

On July 11, 1903, the Hon. John Douglass Armour died 
in London, and on July 28, 1903, Mr. A. B. Aylesworth, 
K. C , of Toronto, was appointed in his place. 

The Agents. 

It was provided that each of the high contracting parties 
should name one person to attend the tribunal as its agent. 
Hon. John W. Foster, of Washington, D. C, was appointed 
agent of the United States, and Hon. Clifford Sifton, K. C, 
Minister of the Interior in the cabinet of the Dominion of 
Canada, was appointed agent of Great Britain. 

The Procedure. 

It was provided that the written or printed case of each 
party, accompanied by all the evidence relied on to sustain 
it, should be delivered in duplicate to each member of the 
tribunal and to the agent of the other party, within two 
months from March 3, 1903, that within the next two months 
either party might in like manner deliver a counter case and 
additional evidence in reply, the power being vested in the 
tribunal to extend the last mentioned period if it should 
become necessai-y by reason of special difficulties arising in 
the procuring of such additional proof. The tribunal could 
require the exhibition of documents relied on by a party, and 
of evidence pertinent to the case which appeared to be in the 
possession of a party. 

Within two months from the expiration of the time limited 
for filing the counter case, it was the duty of each party to 
deliver in duplicate to each member of the tribunal, and to 
the agent of the other party, a written or printed argument 
showing the points and referring to the evidence relied on, 
and either party could support the same before the tribunal 
by oral argument. 



12 

The tribunal was to assemble for the first meeting at London 
as soon as practicable after receiving the commissions, and 
was authorized to fix the times and places of all subsequent 
meetings. 

It was agreed by diplomatic correspondence that it would 
be regarded as a compliance with the convention if the cases 
and counter cases should be presented on the day fixed in 
London and Washington to the embassies of the respective 
governments to be forwarded without a formal meeting of the 
tribunal at London. Great Britain asked an extension of 
time for the filing of the cases, but this was declined. 

Inasmuch as the 3d of May fell upon Sunday, it was agreed 
that the cases should be delivered on May 2d, but in order to 
catch the Saturday's steamers it was subsequently agreed that 
the delivery should be on May 1st. Mr. Choate was authorized 
by Mr. Hay to receive the British case in London for the 
American members of the tribunal and the American agent. 

On May 15th the British agent wrote to the American 
agent that it would be impossible to prepare the British 
counter case within two months and suggested an extension of 
two months. This was declined on the ground that the Amer- 
ican members of the tribunal said that it was impossible to 
consent because of a contemplated special session of Congress. 
It was not considered desirable that the Secretary of War and 
Senator Lodge should be out of the country during such 
session. This declination was by cablegram on May 25, 1903. 
On May 29th a seemingly retaliatory step was taken which 
foreboded serious complications. This was a request on the part 
of Great Britain for the production of practically all of the 
documents referred to in the United States case, with the 
statement that the British agent could examine them in Wash- 
ington or make arrangements to photograph the originals. 
This called forth a sharp reply from Mr. Hay, in which he 
said : 

" The list of papers inclosed with your first note embraces 
documents all of which have been textually set forth in the 



13 

case of the United States, many of which are likewise printed 
in full in the British case without any material variation, and 
the originals of some of which should exist in the British 
archives. The documents called for in your second note are 
likewise textually set forth in the case of the United States. 
They consist not only of copies of official papers certified to 
by the chief officer of the respective departments of the gov- 
ernment, but of extracts from official printed publications and 
from books accessible to the general public. It is suggested 
that such a sweeping request would hardly be approved by the 
tribunal. 

" The treaty does not appear to provide for either the pro- 
duction or examination of original papers by the agent of the 
other party upon his own request, nor for permission to photo- 
graph any papers. Although no reason is given in justifica- 
tion of the unusual request of the British agent, the United 
States is desirous of avoiding all unnecessary delay and of 
affording every proper opportunity for verifying anything relied 
upon by it in its case. I take pleasure, therefore, in assuring 
you that the British agent, or a representative duly authorized 
by him, will be given full opportunity to examine and verify 
the originals in the exclusive possession of this government of 
anything contained in the case of the United States, provided 
that no delay is thereby caused either in the delivery of the 
counter case or of the printed argument, or in the commence- 
ment of the oral argument. 

" I beg to add that it is the intention of the agent of the 
United States to take to London the originals or certified 
copies of all documents and papers contained in the case and 
counter case of the United States, and to be prepared to pro- 
duce them at the request of the British agent approved by the 
tribunal." 

Sir M. H. Herbert replied : 

" 1 have now received a telegram from the Marquis of 
Lansdowne stating that His Majesty's government are not 
aware that any precedent exists for coupling the production of 
original documents with any condition such as that laid down 
by the United States government. 

"The condition, moreover, in the opinion of His Majesty's 
government amounts to a refusal, as, without an extension of 
time, it is practically impossible to examine large numbers of 
documents and to embody the result. 



14 

"Both in private litigation and in international arbitrations 
the right to inspect has never been questioned, and His 
Majesty's government cannot, by accepting conditions, cast 
doubt on the existence of this right and thus establish a prece- 
dent which might prove a serious bar to a resort to arbi- 
tration. 

" The originals in Russian, of which only translations are 
given, form a great proportion of the documents which it is 
desired to inspect. His Majesty's government consider that 
they have obviously a right to compare the originals with these 
translations. 

" The description which has been given of other documents 
has not been sufficient for the purpose of tracing copies in 
England. 

" His Majesty's government consider that in cases where 
certified extracts are given, they have clearly the right to see 
the whole documents so as to satisfy themselves that nothing 
material is contained in the omitted portions. 

" His Majesty's government hope that on further consider- 
ation the United States government will agree unconditionally 
to their request, so that it may be possible to avoid the neces- 
sity of calling a special meeting of the tribunal to consider 
the matter. 

"An application for the extension of time is expressly con- 
templated in the convention, and, unless this application is 
acceded to, it will be impossible to present fully the reply to 
the United States case. His Majesty's government cannot 
believe that the United States government will be prevented 
through any question of personal convenience from favorably 
considering the request, the refusal of which would entail the 
presentation of the British counter case in an incomplete 
form, as unsatisfactory to His Majesty's government as to the 
tribunal. 

"His Majesty's government would accordingly be glad to 
learn that the United States government agree to the appli- 
cation of the British agent, whose request for an extension of 
time they strongly support." 

This fully discloses that the purpose of Great Britain was 
to force an extension of time. 

Mr. Hay, in a lengthy note of June 16, 1903, took the 
ground that no such special difficulties as the treaty contem- 



15 

plated as a condition precedent to the extension of time had 
arisen. He characterized the request in regard to documents 
as "a complete impeachment of the American case" and con- 
cluded as follows : 

"I trust you will assure the Marquis of Lansdowne of the 
earnest desire of the President to bring this vexed question to 
a termination in such a way that it will leave no unkind 
feeling between the two nations, and that he is desirous of 
meeting his Lordship's wishes as far as possible. He has, 
therefore, directed me to state that the British agent, or his 
representative, will be permitted at his convenience to examine 
all the documents adduced in the case of the United States 
to which reference is made in your notes of May 29th and 
June 8th, without any restriction or condition as to the use he 
shall make of the results of his examination, reserving for 
the agent of the United States the right to enter such motion 
or objection before the tribunal when it assembles as he may 
think proper. 

"I have already advised you of the intention of the agent 
of the United States to have in London the originals or cer- 
tified copies of all documents and papers contained in the 
case and counter case of the United States. He has already 
prepared copies in the original of the Russian documents in 
the case. Should the British agent not see proper to take 
advantage of the permission herein given to examine these 
and other documents in Washington, and should desire it, the 
Russian documents will be forwarded to him at London. 

"In closing, I have the honor to inform you that, in faithful 
compliance with the treaty, the counter case of the United 
States, which is already printed, Avill be delivered in the 
numbers heretofore indicated, on July 3d, at your embassy in 
this city, unless you should indicate that delivery at Newport 
will be more convenient to you." 

Mr. Choate took the affair up actively at London with the 
Attorney General, who stated that while the British counter 
case would be delivered by July 3d, it would necessarily 
be incomplete and would be accompanied with a statement 
that it might have to be supplemented in some form. 

In the reply to the note of Mr. Hay of June 16th it was 
claimed, for the first time, that the British government was 



16 

entitled to the necessary time for inquiry at the head of Lynn 
Canal as to the credibility of certain Indian witnesses who had 
made affidavits in support of the case of the United States, 
and the weight which should be attached to their statements, 
and also for the examination on the spot of certain statements 
made in the United States case as to acts of occupation and 
exercise of jurisdiction in the disputed territory by the United 
States government. The note concluded with a statement 
that the British government felt bound to press for the 
extension of time for which they had applied, and that upon a 
failure to agree it would be necessary to summon the tribunal, 
in order that the point might be discussed and that this would 
probably cause the postponement of the discussion of the real 
question. 

The position was taken by the British government, in a 
note of July 1st, that translations of certain Russian documents 
had been adduced in support of the case of the United States 
which did not comply with the convention which provided 
"that documentary evidence should accompany the case," 
and that for this variance His Majesty's government would 
have been justified in refusing to accept the case delivered 
on behalf of the United States. The claim was made that 
inasmuch as the documents themselves were not made acces- 
sible until after the delivery of the counter case, the British 
government was entitled to two months /rom that time to 
reply to them. The note concluded as follows : 

" Should His Majesty's government be disappointed in this 
expectation they would be fully justified in refusing to pro- 
ceed further in the matter, and in any case they reserve their 
right to protest to the tribunal against the reception of evi- 
dence to which the opportunity of reply had been denied 
them, and to claim permission to put in such evidence in 
rebuttal of the statements in the United States case as they 
have been prevented from submitting with their counter case. 

" His Majesty's government cannot bind themselves to any 
time for the opening of the oral argument. If the extension 
they now require is not granted, and the tribunal meets in 



17 

September, His Majesty's government reserve the right to 
show cause before the tribunal for the postponement of the 
oral argument on the ground that time has not been granted 
to complete and examine the evidence which should be dealt 
with in their counter case." 

Exception was taken to the assertions of this note on the 
ground that they involved "the honor and good faith of the 
United States." 

Although the outlook had become exceedingly ominous, the 
counter cases were delivered on July 3d. The British coun- . 
ter case was preceded by a protest and a reservation of the 
"right to apply to the tribunal when it shall assemble for 
permission to put in such supplementary statement and evi- 
dence as the justice of the case may call for." 

Early in July the British government sent representatives 
to Washington to examine and photograph documents relied 
upon in the case of the United States. Much time and labor 
were devoted to this work, but no material discrepancy was 
found to exist and no exceptions were relied on. 

On July 29th Mr. Sifton proposed to General Foster that 
the preliminary meeting of the tribunal should be on October 
15th " to organize, settle questions of procedure, fix the time 
when oral argument will be proceeded with, and also deal with 
any other question that may he presented hy either party for 
consideration." General Foster reminded him that more than 
three months previously it had been definitely agreed that the 
preliminary meeting should be on September 3d and declined 
to consider any postponement. 

In view of the repeated demands for extension, the protest, 
the reservation of the right to ask the tribunal to postpone 
the hearing, the intimations in regard to exceptions to the 
regularity of the production of evidence in behalf of the 
United States, the statement of Mr. Raikes in his note of 
July 1st that His Majesty's government might, in view of the 
refusal of extension of time by the United States, be fully 
justified in refusing to proceed further in the matter, there was 



18 

necessarily much doubt as to the course that would be pursued 
by the British government when the tribunal assembled, and 
there was naturally conjecture as to whether application would 
be made for extension, as to whether exceptions would be 
filed bavins: in view the evisceration of the evidence relied 
on by the United States, and as to what attitude such pro- 
cedure would put the parties in. 

Enough had transpired to cause the opening day to be 
looked forward to with grave anxiety. The British govern- 
ment appeared to have had in view the procurement of the^ 
desired extension by agreement, and failing in this, the only 
purpose made manifest was to proceed to a speedy hearing 
upon the merits. There were no exceptioQS and no dilatory 
proceedings. Shortly before the day of meeting, the Attorney 
General called to arrange for the argument. In i-esponse to 
an inquiry he stated that there would be no motion or ex- 
ceptions. In a very few minutes it was agreed that one side 
should open and the other close, there being three alternating 
arguments on each side. While he stated that he would not 
urge it, he expressed a preference that the opening should be 
in behalf of Great Britain, which was promptly conceded. 

The recital in the minutes as to the representatives of the 
respective governments is as follows : 

The Hon. John W. Foster, the United States Agent, and 
Hon. Clifford Sifton, K. C, the British Agent. 

Hon. Jacob M. Dickinson, Mr. David T. Watson, Hon. 
Hannis Taylor and Mr. Chandler P. Anderson appeared as 
counsel for the United States. 

Mr. Robert Lansing, Solicitor of the United States Agency, 
Mr. 0. H. Tittman, Mr. W. C. Hodgkins, Mr. Otis T. Cart- 
wright, Mr. John T. Newton and Mr. F. R. Hanna, members 
of the United States Agent's staff. 

The Attorney General (Sir Robert B. Finlay, K. C, M. P.), 
the Solicitor General (Rt. Hon. Sir Edward H. Carson, 
K. C, M. P.), Mr. Christopher Robinson, K. C, Mr. F. C. 
Wade, K. C, Mr. L. P. Duff, K. C, and Mr. A. Geoffrion, 
K. C. ; Mr. S. A. T. Rowlatt and Mr. J. A. Simon appeared 
as counsel for Great Britain. 



19 

Mr. W. F. King and Mr. A. P. Collier, members of the 
British Agent's staff. 

Mr. Reginald Tower, His Britannic Majesty's Minister at 
Munich and Stuttgart, as Secretary to the Tribunal ; Mr. J. 
R. Carter, Second Secretary in the American Embassy, Lon- 
don, and Mr. Joseph Pope, C. M. G., Under Secretary of 
State of Canada, as Associate Secretaries. 

In accordance with the precedents of courtesy which have 
obtained on such occasions, and also on account of his dis- 
tinguished personality and the high position held by him, 
Lord Alverstone was chosen to preside over the tribunal. 
Sittings were held in the foreign office on Downing Street 
each day at eleven and continued until one-thirty. An 
adjournment was usually taken for half an hour for lunch, 
served very elaborately in the adjoining apartments by the 
British government, and there were afternoon sessions until 
four. 

The argument began on the 15th of September and was 
concluded on the 8th of October. The counsel for America 
consumed about eight and a half and those for Great Britain 
about nine and a half days, of which time the Attorney Gen- 
eral, Sir Robert Finlay, who made the opening argument, 
occupied six and a half days in an elaborate discussion dealing 
with every question in the case. On the main question he had 
a hopeless cause, in the defense of which, however, he expended 
such infinite pains and displayed so much forensic skill that 
he might truthfully have said : 

" . . . si Pergama dextra 
Defendi posseni etiam hac defensa fuissent." 

The decision was rendered on October 20th. It was not 
announced from the bench nor were the opinions read. The 
President, in accordance with the provisions of the treaty, 
handed to the respective agents the decision of the tribunal 
upon the several questions submitted for their determination, 
accompanied by maps. 



20 

All of the proceedings and arguments were taken down 
stenographically and printed each day and a copy was given 
next morning to each member of the tribunal and the repre- 
sentatives of the respective governments. 

On the thirtieth day of September, the President announced 
the death of His Excellency The Rt. Hon. Sir Michael H. 
Herbert, K. C. M. G., C. B. On account of the distinguished 
position held by him, and also from the fact that he had, 
in behalf of Great Britain, negotiated the treaty under which 
the tribunal was sitting, upon the motion of the counsel 
for the United States, seconded by the counsel for Great 
Britain, an adjournment was taken in honor of his memory. 

Questions Submitted. 

The treaty provided that the tribunal should, in the settle- 
ment of the questions, consider the treaty between Great 
Britain and Russia of February 28/16, 1825, and that 
between the United States and Russia of March 30/18, 
1867, and particularly Articles III, IV and V of the first 
mentioned treaty, which in the original text are word for 
word as follows : 

" III. La ligne de demarcation entre les Possessions des 
Hautes Parties Contractantes sur le Cote du Continent et les 
lies de r Amerique Nord-ouest, sera trac^e ainsi qu'il suit : 

"A partir du Point le plus meridional de I'lle dite Prince of 
Wales, lequel Point se trouve sous la parallele du 54°^*^ degrd 
40 minutes de latitude Nord, et entre le 131™*^ et le 133^^^ 
degr^ de longitude Ouest (M^ridien de Greenwich), la dite 
ligne remontera au Nord de long de la passe dite Portland 
Channel, jusqu'au Point de la terre ferme on elle atteint le 
56°^° degr^ de latitude Nord : de ce dernier point la ligne de 
demarcation suivra la crete des montagnes situdes parallele- 
ment a la Cute, jusqu'au point d'intersection du 141™® degrd 
de longitude Ouest (meme Meridien) ; et, finalement, du dit 
point d'intersection, la meme ligne m^ridienne du 141^^® degrd 
formera, dans son prolongement jusqu'a la mer Glaciale, la 
limite entre les Possessions Russes et Britanniques sur le 
Continent de I'Amerique Nord-ouest. 



21 

" IV. II est entendu, par rapport a la ligne de demarcation 
determinee dans 1' Article precedent : 

1°. Que I'ile dite Prince of Wales appartiendra toute 
entiere a la Russie : 

2*^. Que partout ou la crete des montagnes qui s'etendent 
dans une direction parallele a la Cote depuis le 56™® degre de 
latitude Nord au point d'intersection du 141™® degrd de longi- 
tude Quest, se trouverait a la distance de plus de dix lieues 
marines de I'Ocean, la limite entre les Possessions Britanniques 
et la lisiere de Cote mentionnde ci-dessus comme devant 
appartenir a la Russie, sera formde par une ligne parallele 
aux sinuosites de la Cote, et qui ne pourra jamais en etre 
eloignee que de dix lieues marines. 

V. II est convenu en outre, que nul Etablissement ne sera 
form^ par I'une des deux Parties dans les limites que les 
deux Articles prec^dens assignent aux Possessions de I'Autre. 
En consequence, les Sujets Britanniques ne formeront aucun 
Etablissement, soit sur la cote, soit sur la lisiere de terre 
ferme comprise dans les limites des Possessions Russes, telles 
qu'elles sont designees dans les deux Articles prdcddens ; et 
de m§me, nul Etablissement ne sera forme par des Sujets 
Russes au dela des dites limites." 

It was provided that thetribunal should consider any action 
of the several governments preliminary or subsequent to the 
conclusion of said treaties, so far as the same tend to show the 
original and eifective understanding of the parties in respect 
to the limits of their several territorial jurisdictions under and 
by virtue of the provisions of said treaties. In Article IV, 
referring to the treaty of 1825, the questions were stated as 
follows : 

" Referring to Articles III, IV and V of the said treaty of 
1825, the said tribunal shall answer and decide the following 
questions : 

" 1. What is intended as the point of commencement of 
the line ? 

" 2. What channel is the Portland Channel ? 

" 3. What course should the line take from the point of 
commencement to the entrance to Portland Channel? 

"4. To what point on the 56th parallel is the line to be 
drawn from the head of the Portland Channel, and what course 
should it follow between these points ? 



22 

"5. In extending the line of demarcation northward from 
said point on the parallel of the 56th degree of north latitude, 
following the crest of the mountains situated parallel to the 
coast until its intersection with the 141st degree of longitude 
west of Greenwich, subject to the condition that if such line 
should anywhere exceed the distance of ten marine leagues 
from the ocean, then the boundary between the British and 
the Russian territory should be formed by a line parallel to the 
sinuosities of the coast and distant therefrom not more than 
ten marine leagues, was it the intention and meaning of said 
convention of 1825 that there should remain in the exclusive 
possession of Russia a continuous fringe or strip of coast on 
the mainland not exceeding ten marine leagues in width, 
separating the British possessions from the bays, ports, inlets, 
havens and waters of the ocean, and extending from the said 
point on the 56th degree of latitude north to a point where 
such line of demarcation should intersect the 141st degree of 
longitude west of the meridian of Greenwich ? 

" 6. If the foregoing question should be answered in the 
negative, and in the event of the summit of such mountains 
proving to be in places more than ten marine leagues from the 
coast, should the width of the lisiere which was to belong to 
Russia be measured (1) from the mainland coast of the ocean, 
strictly so called, along a line perpendicular thereto, or (2) 
was it the intention and meaning of the said convention that 
where the mainland coast is indented by deep inlets, forming 
part of the territorial waters of Russia, the width of the 
lisiere was to be measured (a) from the line of the general 
direction of the mainland coast, or (b) from the line separating 
the waters of the ocean from the territorial waters of Russia, 
or (c) from the heads of the aforesaid inlets? 

" 7. What, if any exist, are the mountains referred to as 
situated parallel to the coast, which mountains, when within 
ten marine leagues from the coast, are declared to form the 
eastern boundary? " 

Opposing Contentions and Decision. 

There was no controversy as to the first question, and it 
having been stated in the "case" for each government that 
the line began at Cape Muzon, the tribunal unanimously 
decided accordingly. 

LofC. 



23 

/ In respect of the second question, it was agreed that the 
body of water extending northeast from about the eastern end 
of Pearse Island was a part of Portland Channel. The United 
States contended that from this point Portland Channel 
extended out to the ocean south of Pearse and Wales Islands, 
and Great Britain contended that from that point it extended 
to the ocean north of those islands. A great many arguments 
were advanced by both sides on this question. It was manifest 
that it was regarded as the strongest claim put forward by 
Great Britain in the case. The Attorney General devoted 
nearly three days to its discussion. Vancouver had been sent 
by the British government to the northwest coast of America 
for the purpose of discovering a navigable river that could be 
used for bringing out furs from the British possessions in the 
interior. He explored the entire coast and in 1798 published 
a narrative, accompanied by charts showing Portland Canal. 

These charts were known to have been before the negotiators 
of the treaty of 1825, but there was no direct evidence that 
the narrative was before them or was relied on by them. 
Tried by the charts alone, the contention of the United States 
was the stronger. Tried by the narrative alone, the general 
contention of Great Britain was conclusively established. If 
it were assumed that both the charts and the narrative were 
used by the negotiators, the question was involved in much 
doubt, but the evidence was more favorable to the British view. 

The tribunal unanimously agreed that Portland Channel 
passed to the north of Pearse and Wales Islands, and a 
majority, consisting of Lord Alverstone, Mr. Root, Mr. Lodge 
and Mr. Turner, decided that after passing to the north of 
Wales Island it continued out to the ocean between Wales 
and Sitklan Islands through Tongass Passage. This 
gave Wales and Pearse Islands to Great Britain and 
Sitklan and Kanagunut Islands to the United States. 
"^ach has a length of about three and a half statute 
miles. Sitklan is about one and one-fourth miles wide, 
and has an area of 3.62 square miles, while Kanagunut has 



24 

only 1.97 square miles. They are of but little known value, 
and have no good harbor. They were supposed by Canada 
to have great strategic value in case of war on account of their 
proximity to Fort Simpson, which is contemplated as the 
terminus of a trans-continental railroad. Lord Alverstone 
filed a separate opinion on the second question, giving the 
reasons for his decision. Mr. Root, Mr. Lodge and Mr. 
Turner also filed a joint opinion on this question. Much has 
been said in regard to drawing the line through Tongass 
Passage. The explanation given by the commissioners of the 
United States is as follows : 

" He (Vancouver) followed the channel westerly, passing 
what has been known as Tongass Passage, between Wales and 
Sitklan Islands, through which he looked and saw at a short 
distance the ocean. Desiring, however, to find, if possible, 
another opening to the ocean which followed the general line 
of the continent, he kept on, through the narrow passage 
which passes north of Sitklan and Kannaghunut Islands, and 
came out into the ocean opposite Cape Fox. Near Cape Fox 
he encamped. He then explored the waters around Revilla 
Gigedo Island, and on the 14th of August returned to Cape 
Fox. At dawn the next morning, which in that latitude and 
in August must have been at a very early hour, he set out to 
return to his vessels, and he writes that in the forenoon, which 
must have been some hours after he started from the point 
opposite the narrow channel out of which he had issued the 
2d of August, he passed the mouth of the channel which he 
had previously explored, and which he named ' Portland's 
Canal, in honor of the noble family of Bentinck.' " 

His exact language is as follows : 

" In the forenoon we reached that arm of the sea whose 
examination had occupied our time from the 27th of the pre- 
ceding to the 2d of this month. The distance from its 
entrance to its source is about seventy miles, which, in honor of 
the noble family of Bentinck, I named 'Portland's Canal.' 
(Pp. 370-71, Vancouver.) 

" It seems clear from this statement that if he considered, 
as the other extracts from his narrative already cited seem to 
prove, the northerly channel as the natural extension of the 



25 

deep inlet running to the 56tli parallel, he must have looked 
into it through Tongass Passage, and then and there gave it 
its name. Moreover, it is quite obvious from the maps that 
there are three outlets for the waters which come through the 
northern channel and are swelled by those from the inlets 
about Fillmore Island. Two of them are very small, so small 
as to be practically impossible to navigate. The third is the 
Tongass Passage, and that seems beyond a question, on the 
face of both the maps and the text, to be the true entrance to 
the channel which passes north of Wales and Pearse Islands. 
Accepting Vancouver's narrative as having the greatest weight, 
the conclusion follows that the award of the tribunal must be 
that the Portland Channel intended by the makers of the 
treaty of 1825 was that body of water which entered the sea 
by the Tongass Passage and passed thence north of Wales and 
Pearse Islands, and so onward to the immediate neighborhood 
of the 56th parallel." 

On this point Lord Alverstone said : 

" The narrative of Vancouver refers to the channel between 
Wales Island and Sitklan Island, known as Tongass Passage, 
as a passage leading south-southeast towards the ocean which 
he passed in hopes of finding a more northern and westerly 
communication to the sea, and describes his subsequently find- 
ing the passage between Tongass Island on the north and Sit- 
klan and Kannaghunut on the south. The narrative and the 
maps leave some doubt on the question whether he intended 
the name Portland Canal to include Tongass Passage as well as 
the passage between Tongass Island on the north and Sitklan 
and Kannaghunut Islands on the south. In view of this 
doubt, I think, having regard to the language, that Vancouver 
may have intended to include Tongass Passage in that name, 
and looking to the relative size of the two passages I think 
that the negotiators may well have thought that the Portland 
Channel, after passing north of Pearse and Wales Islands, 
issued into the sea by the two passages above described." 

Mr. Aylesworth filed a separate dissenting opinion, dealing 
with all the controverted questions and disagreeing with the 
majority upon all of them, except as to Portland Channel 
extending north of Pearse and Wales Islands. As to its con- 
tinuation through Tongass Passage, he said : 



26 

" No intelligible reason for selecting it has been given in 
my bearing. No memorandum in support of it has been pre- 
sented by any member of the tribunal, and I can therefore 
only conjecture the motives which have led to its acceptance. 



" How can such a determination be reconciled with our duty 
to decide judicially upon the questions submitted to us? It is 
no decision upon judicial principles; it is a mere compromise 
dividing the field between the contestants." 

He pronounced it as " nothing less than a grotesque travesty 
of justice." He concludes his opinion as follows : 

" Finally, I have merely to say this further, that the course 
the majority of this tribunal has decided to take in regard to 
the islands at the entrance of Portland Channel is, in my hum- 
ble judgment, so opposed to the plain requirements of justice, 
and so absolutely irreconcilable with any disposition of that 
branch of this case upon principles of a judicial character, 
that I respectfully decline to affix my signature to their award." 

In the Fur Seal Arbitration, Senator Morgan and Mr. 
Justice Harlan voted upon the main points of controversy 
against the finding of the majority and filed very elaborate 
dissenting opinions. Nevertheless they signed the award. 
The first of the conventions agreed on by the Hague Tribunal 
provided that awards must be signed by each member of the 
tribunal, the members in the minority having the liberty, in 
signing, to state their dissent. 

This, of course, was not obligatory upon the members of 
the Alaskan Tribunal, as the treaty only required the decision 
to be signed by the assenting members, but it showed the 
mature judgment of diplomats as to the procedure which 
seemed desirable to be followed by arbitrators, and this judg- 
ment was ratified by the concurrent assent of twenty-six nations 
to the Hague Tribunal convention. 

Sir Louis Jette filed a dissenting opinion without any 
arraignment of his associates, and likewise declined to sign 
the award. 



27 

The third question involved no real difficulty after the 
second question was answered. The line was drawn direct 
from the point of beginning to the middle of the channel of 
the body of water which had been declared to be Portland 
Channel. 

The United States requested that it be answered to the 
fourth question that the line should be drawn from the head of 
Portland Channel northeasterly, along the same course which 
it had pursued up to the point where it touched the mainland 
at the head of Portland Channel, until it intersected the 56th 
parallel of north latitude. The treaty provided that the line 
should proceed to the north along Portland Channel to the 
point where it strikes the 56th degree of latitude north, and 
that from this last mentioned point it should follow the crest 
of the mountains situated parallel to the coast. Portland 
Channel did not reach to that parallel. It was contended by 
Great Britain that the mountains which the treaty meant 
coincided with the parallel at a point about fifty-seven miles 
almost due west of the head of Portland Channel. The dis- 
cussion of this question involved the meaning of the words 
"coast" and "crest of the mountains," the determination of 
which was necessary for answering the fifth and seventh ques- 
tions. The tribunal, Mr. Aylesworth and Sir Louis Jett^ 
dissenting, decided that the point to which the line is to be 
drawn from the head of Portland Channel is the point on the 
56th parallel of latitude which is indicated by the letter " D " 
on the map attached to and made a part of the findings of the 
tribunal, ^he point is almost directly north of the head of 
Portland Channel, near the intersection of the 56th parallel 
and the 130th meridian, and does not vary materially from 
the point contended for by the United States. 
,_---The fifth and seventh questions were inseparable in the 
argument. The language of the treaty was that the line of 
demarcation should follow the summit of the mountains situ- 
ated parallel to the coast. It was necessary to determine the 
meaning of the word " coast " as used in the treaty, and what 



28 

mountains, if any, answered to those meant by the treaty. It 
was known that the negotiators had before them and con- 
sulted Vancouver's charts and two maps based upon them, 
namely, an official map published by Russia in 1802 and one 
published by Faden in 1823. Upon all these maps there 
appeared a distinct chain of mountains with a continuous crest 
extending from near the head of Portland Channel northerly, 
maintaining a general parallelism to the mainland coast, up to 
Mt. St. Elias and beyond, and on all of them the mountain 
chain so depicted passed around the heads of all of the inlets, 
and on none of them was it broken, with a trend across any of 
the inlets. It indicated a natural boundary between the coast 
and the country to the interior. The correspondence showed 
that the negotiators had in mind-^ chain or range of moun- 
tains existing approximately about ten marine leagues from 
and generally parallel to the coast. The establishments of 
Russia were on the islands, but her trade was mainly with the 
inhabitants along the coast. It was apparent throughout the 
entire negotiations that Russia sought, and that Great Britain 
intended to concede, a strip of coast along the continent 
bounded by a mountain barrier, and that this should be a pro- 
tection to the establishments of Russia upon the islands, and 
to her trade with the Indians along the coast, and that it 
should not be penetrated by Great Britain, except under the 
right given to Great Britain, to pass along navigable rivers 
extending from British territory through this border, which 
was designated as a lisiere, to the sea. 

Subsequent explorations developed that there was no such 
continuous chain, or mountain crest, in the interior, as Van- 
couver and the map makers who followed him had depicted. 
The whole region is mountainous, composed of an elevated 
plateau, with numerous peaks, without any regular arrange- 
ment in a mountain chain. There are short ranges, but no 
distinct general range, as far back as the explorations have 
gone. The United States contended that, taking the corre- 
spondence and the maps with reference to which the treaty was 



29 

made, and the maps which for so many years after the treaty 
laid down the boundary line around the heads of the bays and 
inlets, it was not only the manifest purpose of the treaty that 
the line should, in any event, run around all of the interior 
waters, but that all three of the governments had by their acts 
put this practical interpretation upon the treaty. It was also 
contended for the United States that, while there was no 
range of mountains answering to the treaty, the purpose 
nevertheless was plain that the line with reference to the 
heads of the inlets should be drawn with the same relation 
that the mountains depicted upon the maps bore to the heads 
of the inlets, and that the coast to which this line was to be 
drawn parallel was the mainland coast extending around the 
heads of all interior waters. On the other hand. Great 
Britain contended that "coast" meant, not the whole phys- 
ical coast of the country, but rather a political coast ; that 
is to say, not a coast that is coincident with the ocean and 
the land, but a coast defined by a line drawn from headland 
to headland where they were not more than ten miles apart. 
Such a line would run across bays and inlets and canals. 
Great Britain contended that the mountains meant were those 
next to the sea, and that the tribunal should draw the line 
along the mountains nearest to the sea and parallel to the 
political coast. The result of this contention would have been 
to carry the line across Glacier Bay, Taku Inlet, Lynn Canal 
and other similar waters, and take from the United States 
every safe harbor on the northwest coast of America. This 
contention virtually obliterated the lisiere, which was intended 
to be a protection to Russia, and so far from giving a con- 
tinuous strip of continent, the lisiere would have been broken 
by stretches of water. 

While the United States contended that there was no defi- 
nite range of mountains such as the treaty contemplated, and 
that in the absence of such range, the line was to be drawn 
under the alternative provision, ten marine leagues from the 
continental coast and generally parallel to it ; yet it also con- 



30 

tended that if the tribunal should find that the plateau 
elevation and the peaks thereon constituted a mountain summit, 
within the meaning of the treaty, it was necessary, in selecting 
the peaks, and in drawing this mountain line, so to locate it 
that it would pass along peaks which could be associated in a 
way that would carry the line around the heads of the interior 
waters, and that it would not be in accordance with the 
manifest purpose of the treaty to connect peaks directly which 
were situated on opposite sides of any of these bays and inlets 
and thus break up the coast line and destroy the lisiere. 
Lord Alverstone, Mr. Root, Mr. Turner and Mr. Lodge 
answered the fifth question in the afiirmative. Lord Alverstone 
wrote a separate opinion on that question and the other three 
wrote a joint opinion. It is a remarkable fact that no 
opinion was written by the majority of the court upon the 
seventh question. The question as to the mountains was 
incidentally discussed in the opinion upon the fifth question, 
he tribunal answered the seventh question to the efi'ect that 
there were mountains in the country which had been explored 
which answered to those referred to in the treaty, and the line ^ 
was drawn connecting mountain peaks, and substantially wherj&>' 
the United States contended that it should be drawn.y The 
line crossed the rivers as had been indicated by Mr. Fish. A 
stretch of the line connecting a peak north of parallel 57 with 
a peak north of Taku River was indicated arbitrarily, as the 
country had not been surveyed, the distance being about 
130 miles. With this exception there can hardly be any 
room for controversy as to exactly where the boundary line 
is, for every peak is carefully designated, and the line is 
actually laid down upon the map which is attached to and 
made a part of the judgment. 

The sixth question was not answered, as it was only to be 
considered in the event that the fifth question should be 
answered in the negative. 

With the exception of Wales and Pearse Islands and the 
sovereignty over half of the channel south of them, the 
United States were entirely successful. 



31 

Conclusion. 

It was not strictly an arbitration, but rather what might be 
termed an arbitral tribunal, for an arbitration is usually com- 
posed of an odd number and with one or more disinterested 
members. The President was not content to submit to an 
arbitration, as ordinarily constituted, the determination of our 
right to territory which for so long a time had been in the 
undisputed possession of the United States. Following the 
phn proposed in the Olney-Pauncefote Treaty of 1897, which 
was not ratified by the Senate, it was agreed to submit the 
controversy to the judgment of a tribunal composed of an 
equal number of appointees by each government, with the 
requirement that at least four should concur. It is not con- 
ceivable that it was contemplated that a convention brought 
about after such long negotiations, and in regard to a difference 
of such long standing, should result in a fiasco. Both govern- 
ments hoped and expected that there would be a determination 
of the whole matter. It is manifest that cherishing this hope 
they reposed great confidence in the impartiality and courage 
of the appointees, for there could be no determination possible 
without at least one member finding adversely to his national 
sympathies. That such hope and confidence were cherished 
is made manifest by the recital of the treaty that it would be 
unfortunate if a majority of the tribunal should fail to agree 
upon any of the points submitted for their decision. The way 
in which the tribunal was constituted, and the fact that it 
settled the controversy, will for all time make it memorable in 
the history of peace measures. No one who values the peace 
of nations could fail to rejoice that such a grave controversy, 
which threatened to become more and more acute, was finally 
and amicably settled. 

If the tribunal had failed to reach a decision, the situation 
could not but be regarded with grave apprehensions. Great 
Britain had set up a formal claim to territory over which the 
United States had exercised undisputed sovereignty for over 
thirty years. Would Great Britain have remained quiescent 



32 

if her title had been pronounced good bj her three members 
of the tribunal ? If the three appointees of the United 
States had all declined to concur in such judgment, would the 
United States, without compulsion, have surrendered territory 
over which they and their vendor had, without question, asserted 
sovereignty for over seventy years ? If this treaty had failed, 
would the United States have been willing to submit to the 
decision of a foreign umpire? To what extent would party 
spirit in both countries have inflamed the situation ? These 
are grave questions, and such as would make anyone who 
understands the great considerations that should bind together 
the two great English-speaking nations shudder to contem- 
plate ; but happily they are questions which the judicial 
impartiality and courage of a great Englishman have made it 
unnecessary to answer. No man can achieve an act of real 
greatness and hope to escape censure. With his profound 
knowledge of human history and of the narrow limitations of 
selfish natures, he doubtless expected it, as did Marshall in 
respect of his action in the trial of Burr, and his high sense 
of duty in a trying situation was, we may be sure, like that 
expressed by Marshall when he said : 

" That this court dares not usurp power is most true. That 
this court does not shrink from its duty is not less true. No 
man is desirous of becoming the peculiar subject of calumny. 
No man, might he let the bitter cup pass from him without 
reproach, would drain it to the bottom. But if he has no 
choice in the case, if there is no alternative presented to him 
but a dereliction of duty or the opprobrium of those who are 
denominated the world, he merits the contempt as well as the 
indignation of his country who can hesitate which to embrace." 



LIBRftRY OF CONGRESS 



017 297 603 7 




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LIBRARY OF CONGRESS 



017 297 603 7 



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